WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE DETERMINATION
ND
2
AURO U NIVERSITY MOOT COURT COMPETITION, 2016
IN THE HON’BLE DISTRICT COURT OF DELHI PETITION NO. …/2016 …/2016
Smt Rekha and Ors……………………………………………………………... Ors……………………………………………………………... Defendants
v.
State of Delhi…………………………………………………………………..... Delhi………………………………………………………………….....Prosecution Prosecution
(Memorial for the Defendant) COUNSELS ON BEHALF OF THE DEFENDANT
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE
TABLE OF CONTENTS TABLE OF CONTENTS ................................................................ ERROR ! BOOKMARK NOT DEFINED . INDEX OF AUTHORITIES ................................................................................................................. 3 LIST OF ABBREVIATIONS..................................................... ....................................................... .... 6 STATEMENT OF FACTS ................................................................................................................... 8 STATEMENT OF JURISDICTION ...................................................... ................................................. 9 AISED .................................................... ...................................................... .................... 10 ISSUES R AISED
SUMMARY OF ARGUMENTS ................................................. ....................................................... .. 11 ARGUMENTS ADVANCED ..................................................... ....................................................... .. 12
I.
THE EVIDENCE BROUGHT BEFORE THE COURT CANNOT BE RELIED UPON BY THIS COURT . ... 12 12 A.
DNA test as evidence is inadmissible in the present case .......................................... 12
B.
Narco Analysis must not be heeded by this court ...................................................... ........................................................ 13
C.
Hostile Witness statements must not be considered ................................................... 15
D.
Statements made to the Police do not constitute valid Admissions for this Court ..... 18
E.
Circumstantial Evidence does not concretely prove guilt of the defendants ................. 20
II. THE CHARGES FRAMED CANNOT BE PLACED AGAINST THE DEFENDANTS. .......................... 22 A.
There may be no conviction for Murder under Section 302 ....................................... 22
B.
The charge of Kidnapping under Section 364 does not hold ..................................... 23
C.
There has been no causing of disappearance of evidence or giving false information
to screen offender by the defendants ..................................................................................... 24 D.
There exists no Criminal Conspiracy amongst the Defendants ................................. 25
E.
There was no Common Intention amongst the Defendants ............................................ 25
F.
The Defendants Rekha cannot be convicted for causing miscarriage ........................... 26
ELIEF .................................................................................................................... 27 PRAYER FOR R ELIEF
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE
INDEX OF AUTHORITIES EFERRED ARTICLES R EFERRED
1.
E.A.M. Graham, E.E. Turk & G.N. Rutty, Room Rutty, Room Temperature DNA Preservation of o f Soft Tissue for Rapid DNA Extraction: An Addition to the Disaster Victim Identification Investigators Toolkit?, FSI Genetics (2008).
2. N. von Wurmb-Schwark et al., Genetic Investigation of Modern Burned Corpses, Int'l Corpses, Int'l
Cong. Series (2004). 3.
Schwark T et al., Reliable Genetic Identification of Burnt Human Remains, FSI Genetics (2010).
4.
V. K. Kashyap et al., DNA al., DNA Profiling Technologies in Forensic Analysis, Analysis, Cent. Forensic Sci. Lab. (2004).
EFERRED BOOKS R EFERRED
1. SUDIPTO SARKAR, LAW OF EVIDENCE (Wadhwa Nagpur Publications eds., 16th ed. 2008). 2. WOODROFFE AND AMIR ALI, LAW OF EVIDENCE (Lexis Nexis Butterworth Butterworth eds., 19th ed. 2013). EFERRED CASES R EFERRED
1. Badshah v. State of UP (2008) 3 SCC 681. 2. BN Chobe v. Sami Ahmad, (1961) 1 Andh LT 32-34. 3. Bodh Raj vs. State of J&K AIR 2002 SC 3164. 4. Commissioner of Police, Delhi v.Narender Singh, AIR 2006 SC 1800. 5. Dayabhai v. State of Gujarat, AIR 1964 SC 1563. 6. Duasan Bhoi v. State of Orissa, W.P.(C) No. 423 of 2013. 7. Fouzdar Rai v. Emperor, AIR 1918 Pat 193. 8. Hanuman v. State of Rajasthan 1994 Supp (2) SCC 39. 9. Jatinder Singh Bhatia v. State, 153 (2008) DLT 633. 10. Jhapasa Kabadi v. State of Bihar AIR 2002 SC 312. 11. K Ambazhagan v. Superintendent of Police, AIR 2004 SC 254. 12. Kalawati v. State of Himachal Pradesh (1953) SCR 546. 13. Kali Ram v. State of Himachal Pradesh AIR 1973 SC 2773. Page | 3
WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE 14. Kaluchand v. R, (1883) 13 Cal 53. 15. Kashmira v. S, 1952 SCR 526. 16. M.P. Sharma v. Satish Chandra, [1954] SCR 1077. 17. Mahboob v. State of Uttar Pradesh, 1982 CrLR 242. 18. Md Idris Ansari vs The State Of Jharkhand And Ors., W.P. (Cr.) No. 7 of 2014. 19. Mehboob Ali v. State of Rajasthan, Crl.A. No. 808 of 2010. 20. Miranda v. Arizona, 384 US 436 (1966). 21. Mohan Singh v. State of Bihar (2011) 9 SCC 272. 22. Mohan v. State of Rajasthan,1985 CrLR (Raj) 657. 23. Mohd. Faizan Ahmed v. State of Bihar (2013) 2 SCC 131. 24. Mohd. Khaild v. State of West Bengal (2002) 7 SCC 334. 25. Moideenkutty Haji and Ors. v. Kunhikoya and Ors.., AIR 1987 Ker 184. 26. Nandini 26. Nandini Sathpathy vs P.L.Dani (1978) 2 SCC 424. 27. Nayeb 27. Nayeb Shahana v. Emperor, AIR 1934 Cal 636. 28. Nga 28. Nga Nyein v. Emperor, AIR 1933 Rang 57. 29. P Ratnasabhapathy Goundan v. Public Prosecutor, AIR 1936 Mad 516 30. Pappu v. The State of Maharashtra, 2015 (3) BomCR(Cri) 344. 31. Parasa Raja Rao v. State of Andhra Pradesh (2003) 12 SCC 306. 32. Phanindra Dey v. Bholanath, AIR 1982 Cal 397. 33. Prabhoo v. State of Uttar Pradesh, AIR 1962 SC 1118. 34. Prakash v. State of Rajasthan (2013) 4 SCC 668. 35. Premjibhai Bachubhai Khasiya v. State of Gujarat 2009 Cri. L.J. 2888 . 36. Province of Bihar v. Rameshwar Prasad Singh, AIR 1945 Pat 136. 37. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad v. Thummala Janardhana Rao, 1998 CrLJ 4450. 38. R v. Babu Lal, (1884) ILR 6 All 509. 39. R.K.Dey v. State of Orissa, A.I.R. 1977 S.C. 170. 40. Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170. 41. Ram Singh v. Sonia, AIR 2007 SC 1218. 42. Ramjee Rai v. State of Bihar (2006) 13 SCC 229. 43. Re Kalu Singh, AIR 1964 MP 30. Page | 4
WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE 44. S. Arul Raja v. State of T.N. (2010) 8 SCC 233. 45. Santosh Kumar Singh v. State through CBI 2010) 9 SCC 747. 46. Selvi v. State of Karnataka (2010) 7 SCC 263. 47. Sheo Shankar Singh v. State of Jharkhand and Anr (2011) 3 SCC 654. 48. Shivaji Sahebrao Bobade v. State of Maharashtra 1973 Cri LJ 1783. 49. Shobha Devi v. The State of Jharkhand and Nutan Kumari, 2011 CriLJ 4745. 50. Sivajirai Bobade v. State of Maharashtra AIR 1973 SC 2622. 51. Sonti Rambabu v. State of Andhra Pradesh, AIR 2004 AP 317. 52. State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820. 53. State of A.P. v. R. Punnayya 1977 Cr LJ 1. 54. State of Bombay v. Kathi Kalu Oghad & Others, [1962] 3 SCR 10. 55. State of Karnataka vs. David Razaria AIR 2002 SC 3272. 56. State of U.P. v. Babu Ram (2000) 4 SCC 515. 57. State v. Prasenjit Tapadar,1991 East Cr C 371 (C) (DB). 58. Sukhram v. State of Maharashtra (2007) 7 SCC 502. 59. Surendra Krishna Mandal v. Ranee Dasee, AIR 1921 Cal 677. 60. Sushil Sharma v. State of Haryana Crl.appeal No. 693/2007. 61. Tejinder Singh v. State of Punjab (2013) 12 SCC 503. 62. Tulsiram Shaw v. RC Pal, AIR 1953 Cal 160. 63. V.L. Tresa v. State of Kerala AIR 2001 SC 953. 64. Vinay Kumar v. State, CRL.A 670 OF 2007. 65. Vishal Yadav v. State of UP CRL.A. 741/2008. EFERRED STATUTES R EFERRED 1.
Code of Criminal Procedure, 1973.
2.
India Evidence Act, 1872.
3.
Indian Penal Code, 1860.
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE
LIST OF ABBREVIATIONS
ABBREVIATION
FULL FORM
A.P.
Andhra Pradesh
AIR
All India Reporter
Andh.
Andhra
BomCR
Bombay Case Reporter
Cal.
Calcutta
Cent.
Center
Cong.
Congress
Cr.
Criminal
Cri
Criminal
Cri. L.J.
Criminal Law Journal
CRL.A
Criminal Appeal
Ctr
Control
DB
Division Bench
DLT
Delhi Law Tribunal
DNA
Deoxyribonucleic Acid
FSI
Forensic Science International
Int'l
International
J&K
Jammu and Kashmir
Lab
Laboratory
LT
Law Tribunal
Mad
Madras
MP
Madhya Pradesh
No.
Number
Pat
Patna
R
Regina Page | 6
WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE Rang
Rangoon
SC
Supreme Court
SCC
Supreme Court Cases
Sci
Science
SCR
Supreme Court Review
Supp
Supplementary
T.N
Tamil Nadu
UP
Utter Pradesh
US
United States
v.
Versus
vs
Versus
W.P.
Writ Petition
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE
STATEMENT OF FACTS 1.
Trisha Das was born to Rekha Das alias Rekha Mukherjee and Siddhartha Das. After her parents split, Rekha moved to Delhi to study computers and Rekha was raised by her grandparents. Rekha later was in a relation with Suhas Kumar and once that broke, she married Jacoob Mukherjee.
2.
On Rekhas request, Trisha moved to Delhi and obtained a degree from St. Xaviers college and started working for KVS infrastructure in 2009 where she met Ruhi, who became a close confidant. Ruhi was in touch with with Trisha until Rekha was arrested. arrested. After joining Delhi Metro One in 2011, she got into a relation with Jacoob Mathews son, Shobhit.
3.
th
Trisha sent in her written resignation on 24 April 2012 and sent a breakup message to Shobhit Mukherjee. Rekha maintained that Trisha had gone to the US and therefore no missing FIR was filed. Following this, Shobhit approached the Lajpat Nagar police station on th
30 April seeking to register a FIR. On Shobhit’ Shobhit’s insistence, the police went to Rekhas residence where they were told that Trisha was in the US. Later Rekha went to the station to report that due to Shobhit’ Shobhit’s stalking, Trisha left for the US. 4.
On the tip off of Rekha harming her daughter, she was placed under surveillance. However st
the arrests were made on 21 August 2015 when her driver, Shyam Sahu was arrested for possessing arms and he allegedly confessed to Trisha’ Trisha’s murder. There was a body found in 2012 near the Kausani forests and was unidentified till that point of time. An FIR was filed, where it was alleged that Rekha had planned the murder and was assisted by Suhas Kumar. 5.
A DNA test was allegedly carried out, whereby it was indicated that the dead body was that of Trisha Das. In the investigation, the Narcoanalysis allegedly corroborated the FIR, and th
Kumar’s phone was allegedly traced back to Kausani forrest area on 25 April, 2012. Rekha th
was arrested on 25 August for the murder and on the following day, Suhas was also arrested and allegedly confessed to the crime. 6.
The car was not found, nor the weapon. There are no-eye witnesses to the event whatsoever. There is no substantive evidence to the crime, only retracted statement recorded by police in its custody to which all the people involved later denied in the court of law.
7.
The Prosecution has now approached the Honourable District and Sessions Court for prosecuting the accused under u nder Sections 302, 364, 201, 120-B, 34 and 313 of the Indian Penal Code. Page | 8
WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE
STATEMENT OF JURISDICTION
The Prosecution has approached the Hon’ble District Court under Section 226, Chapter XVIII of the Code of Criminal Procedure, 1973 in the present matter. The Defense submits to the jurisdiction of the Court.
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE
ISSUES RAISED
The issues raised before the Hon’ble court are as follows: I. II.
WHETHER THE EVIDENCE BROUGHT BEFORE THE HON’BLE COURT CAN BE RELIED UPON BY THIS COURT. WHETHER THEM.
THE
DEFENDANTS
CAN BE CONVICTED UNDER THE CHARGES PLACED AGAINST
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE
SUMMARY OF ARGUMENTS I.
THE
EVIDENCE BROUGHT BEFORE THE COURT CANNOT BE RELIED UPON BY THIS
COURT .
Firstly, DNA results alleging the identity of the deceased to be Trisha Das may not be admitted
by this court; co urt for the statements Secondly, Narco analysis of the defendants may not be relied on by the court therein; Thirdly, the statements made by the hostile witness Rambahadur may not be used by the
Prosecution to prove its case; Fourthly, the circumstantial evidence that is sought to be brought by the Prosecution does not
concretely indicate the commission of crime by the defendants; and Lastly, the confessions of the defendant Sahu to the police may not be used by the court as
corroboration of the circumstantial evidence. II.
THE DEFENDANTS
CANNOT BE CONVICTED UNDER THE CHARGES PLACED AGAINST
THEM.
Firstly, the defendants are innocent of the charge of Murder of the deceased under Section 302
of the IPC; Secondly, they plead innocent of the charge of Kidnapping with the intent of murder, under
Section 364; Thirdly, they did not cause the disappearance of any material evidence to the case, as charged
under Section 201; Fourthly, they did not take part in a criminal conspiracy to commit crimes, under Section120-B; Fifthly, they lacked any common intention to commit crime under Section 34;
, Rekha must be acquitted of the charge of causing the miscarriage of the deceased Trisha Finally Das, as under Section 313 of the IPC.
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE
ARGUMENTS ADVANCED I.
THE
EVIDENCE BROUGHT BEFORE THE COURT CANNOT BE RELIED UPON BY THIS
COURT.
The Defense submits that firstly, the DNA results alleging the identity of the deceased to be Trisha Das may not be admitted by this court [A], and also that the Narco analysis of the defendants may not be relied on by the court for the statements revealed therein [B]. Furthermore, the statements made by the hostile witness Rambahadur may not be used by the Prosecution to prove its case [C], while the confessions of the defendant Sahu to the police may not be used by the court as corroboration of the circumstantial evidence [D]. Lastly, the circumstantial evidence that is sought to be brought by the Prosecution does not concretely indicate the commission of crime by the defendants [E]. A. DNA TEST AS EVIDENCE IS INADMISSIBLE IN THE PRESENT CASE Although DNA tests are admissible under Section 45 of the Evidence Act, its acceptance and reliability is for mere medical tests and not concrete evidence. In cases of murder, the Supreme 1
Court has accepted DNA evidence as admissible but not sufficient for a conviction. The Supreme Court reiterated its stand on DNA evidence by stating that no conviction can be done by the court solely on the basis of DNA evidence. At the same time, it held that if the DNA 2
evidence is in the negative, neg ative, in such cases, the case will fall.
In cases of extreme fire impact, only hard tissues may be left for DNA analysis. DNA extracted from burnt bone fragments may be highly degraded, making an amplification of genetic markers difficult or even impossible. Identification via DNA analysis is reliably and reproducibly 3
possible from well preserved and semi-burnt bones. Usually samples collected for DNA identification are usually stored at -20°C to halt the degradation processes and then preserved 4
over a 12-month period of to allow DNA profiling.
However, it is submitted that in the case at hand, the corpse was left in the forest for three years, and there was absolutely no concept of preservation of the corpse for the purpose of DNA
1
Sushil Sharma v. State of Haryana, Crl.appeal No. 693/2007. Premjibhai Bachubhai Khasiya v. State of Gujarat, 2009 Cri. L.J. 2888 3 N. von Wurmb-Schwark Wurmb-Schwark et al., al., Genetic Investigation of Modern Burned Corpses, I Corpses, I NT'L CONG. SERIES (2004). 4 E.A.M. Graham, E.E. Turk & G.N. Rutty, Room Temperature DNA Preservation of Soft Tissue for Rapid DNA Extraction: An Addition to the the Disaster Victim Victim Identification Identification Investigators Investigators Toolkit?, FSI Genetics (2008). 2
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE profiling. This creates a doubt as to the level of degradation of the DNA which might have been extracted from the burned corpse. When forensic analysis is dealt with burnt and charred bodies of which only bones or bone fragments are available for reliable genetic identification, highly 5
degraded DNA is retrieved, which hampers STR analysis.
It is submitted that, as discussed by the courts before, the FSL uses PCR and STR amplification 6
process for DNA profiling , and although STR markers are very precise in determining human identity, they might fail to amplify when the template DNA is insufficient, extensively degraded 7
and has undergone modifications. The courts have noted that despite having good Forensic Science Laboratories having latest equipment, due to lack of knowledge among the Investigating 8
Agency, they are not being properly utilized.
The remains may be contaminated with external DNA, during post-cremation processing i.e. handling of the ashes, grinding of bones, etc. As a consequence, STR typing of cremation 9
remains has to be considered unreliable and an d not suitable for forensic purposes.
Thus, it is humbly submitted that even though the extraction and subsequent STR typing of DNA from the ashes of a cremated person is possible and in some cases does yield reproducible results, a reliable post-cremation identification seems to be unlikely. Thus, the lack of any corroborating evidence to support the fact the body found was of Trisha’s or that she was murdered by the accused, exonerates the accused accu sed from their liability. HEEDED BY THIS COURT COURT B. NARCO A NALYSIS MUST NOT BE HEEDED The present case witnesses the use of narco analysis of Rekha, Sahu and Kumar ( herein known 10
as the accused) . The question of narco analysis is invariably related to the persons right to silence, an established right under Article 20(3) of the constitution of India. This right gives the Accused the right against having information being forcibly obtained during an interrogation through certain methods like narco analysis.
11
The importance of this right has been upheld by
5
N. von Wurmb-Schwark Wurmb-Schwark et al., al., Genetic Investigation of Modern Burned Corpses, I Corpses, I NT'L CONG. SERIES (2004). Vinay Kumar v. State, CRL.A 670 of 2007. 7 V. K. Kashyap et al., DNA al., DNA Profiling Profiling Technologies in Forensic Analysis Analysis,, Cent. Forensic Sci. Lab. (2004). 8 Md Idris Ansari v. The State Of Jharkhand And Ors., W.P. (Cr.) No. 7 of 2014. 9 Supra note Supra note 5. 10 Factsheet Page 2. 11 Nandini Sathpathy v. P.L.Dani, (1978) 2 SCC 424. 6
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE the judiciary on certain occasions. The courts have liberally interpreted Article 20(3) of the constitution granting the right of silence , especially with regard to interrogation methods such as 12
narco analysis and upto such an extent as to not only include the accused but anyone with a 13
connection with the offence itself.
The Supreme Court of India has relied upon the Supreme Court of the United States in regard to custodial confessions wherein it has thus been held by the court that a confessional statement before the police is inadmissible before the court unless it was given on a voluntary basis after 14
prior warnings. The Indian Supreme Court has accepted this while holding the same test to any 15
person being interrogated in police custody for the commission of any offence. While upholding the general principle, the court also held that there is no blanket inadmissibility with regard to such statements that are made in police custody. It was held that any statement made, if 16
made on a voluntary basis, then such a statement is not completely inad missible.
In specific terms with narco analysis, the court has come down heavily against the practice. It has held that such practices as violative of the persons right against self incrimination as granted under Article20(3) of the constitution.
17
It held that such a violation can trample upon the civil
liberties of a person. Due to the overwhelming ability of the abuse of process by using narco analysis, it has been categorically held by the court that narco analysis is not to be allowed during the investigation process unless certain stringent safeguards are in place. The two most important safeguards that have been sought for is that primarily, the tests must be made on a completely voluntary basis and that secondly, he must have prior warning. The court still does not give complete admissibility to such statements but merely allows such a statement to be 18
under the scope of Section 27 of the Indian evidence act.
As has been held by the courts, the usage of narco analysis has been given a very limited use. One of the most important conclusions of the court’s decision court’s decision on the use of narco analysis is that
12
M.P. Sharma v. Satish Chandra, [1954] SCR 1077. State of Bombay v. Kathi Kathi Kalu Oghad & Others, [1962] 3 SCR 10. 14 Miranda v. Arizona, 384 US 436 (1966). 15 Nandini Sathpathy Sathpathy vs P.L.Dani, P.L.Dani, (1978) 2 SCC SCC 424. 16 Ibid. 17 Selvi v. State of Karnataka, (2010) 7 SCC 263. 18 Ibid. 13
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE the statements that are obtained by narco analysis is to be treated as any other statement as made under Section 27 of the Indian Evidence Act, 1872. A statement under Section 27 of the Evidence act requires a statement to be made in police and 19
that it makes admissible any fact that was discovered due to a statement made. Further, while looking at the essentials of Section 27, one of the main essentials that was noticed by the court was that consequent to the information that was given by the accused, that information should 20
have led to a discovery of some fact.
Thus applying the principles of narco analysis and section 27, it can be concluded that the narco analysis of Rekha, Kumar and Sahu are not in conformity with the requirements of Section 27 as 21
these statements merely corroborated the FIR and did not lead to any discovery of Fact that is required for a statement to be brought under the ambit of Section of the Evidence Act. Thus the whole narco analysis cannot be accepted by the court as all statements need to be treated as statements made under Section 27. Thus, as the defect in the narco analysis will lead to its invalidity and thus all further corroboration that was relied upon by the narco analysis also cannot be considered by the court. C. HOSTILE WITNESS STATEMENTS MUST NOT BE CONSIDERED A witness is not necessarily hostile if he is speaking the truth and his testimony goes against the interest of the party calling him. Hence, unfavorable testimony does not declare a witness hostile. Hostility is when a statement is made in favour of the defense due to enmity with the 22
prosecution.
A witness is considered adverse when, in the opinion of the judge, he bears a hostile animus to 23
the party calling him, and not merely when his testimony contradicts his proof , or whenever his
19
State of Karnataka v. David Razaria, AIR 2002 SC 3272. Bodh Raj v. State of J&K, AIR 2002 SC 3164. 21 Factsheet Page 2. 22 R.K.Dey v. State of Orissa, A.I.R. 1977 S.C. 170. 23 Surendra Krishna Mandal v. Ranee Dasee, AIR 1921 Cal 677; Fouzdar Rai v. Emperor, AIR 1918 Pat 193. 20
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE 24
testimony is such that it does not support the case of the party calling him , or is not in accord 25
with the evidence of the other witnesses.
The general rule followed by the courts to call a person hostile is that, firstly, when the person shows through his behaviour, hostility to the party that called him to the witness stand and secondly, he speaks something contrary co ntrary to what is expected from him.
26
It is submitted that in the present case, the petrol pump attendant Rambahadur i.e. PW2 had no palpable hostile animus animus to the prosecution, since he has no interest in the case, and stands to neither lose or gain from the outcome of the trial. Merely since the examination of PW-2 in court proved to be unfavourable for the prosecution, p rosecution, as well as contrary to what was expected by them, the witness may not be deemed as a hostile witness adverse to the proceedings. Before seeking permission to declare a witness hostile, the prosecution must demonstrate either by referring to his statement recorded under S. 161 of CrPC or otherwise, that the witness was not telling the truth and only then can the court exercise its judicial discretion in favour of the 27
prosecution.
The court is endowed with the power and jurisdiction to grant permission to a party to crossexamine its own witnesses, and such permission can be granted at any stage of the proceedings. However, the said discretion is required to be exercised in a judicious manner. Such permission may only be granted by the court if it satisfies that the witness has exhibited an element of hostility to the party for whom he or she is deposing.
28
It is submitted that the mere fact that a witness does not adhere to, or subsequently makes a statement different from his previous statement, does not, of itself, justify the employment of the 29
power given by this section. It is, of course, clear that the mere fact that a witness tells two different stories does not necessarily and in all cases show him to be hostile. The proper inference which may be drawn , in such a case, from contradictions going to the whole texture of
24
Tulsiram Shaw v. RC Pal, AIR 1953 Cal 160. Province of Bihar v. Rameshwar Prasad Singh, AIR 1945 Pat 136; P Ratnasabhapathy Goundan v. Public Prosecutor, AIR 1936 Mad 516. 26 BN Chobe v. Sami Ahmad, (1961) 1 Andh LT 32-34. 27 State v. Prasenjit Tapadar,1991 East Cr C 371 (C) (DB). 28 Public Prosecutor, High Court of Andhra Pradesh, Hyderabad v. Thummala Janardhana Rao, 1998 CrLJ 4450. 29 Nga Nyein v. Emperor, AIR 1933 Rang 57; Nayeb Shahana v. Emperor, AIR 1934 Cal 636. 25
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE the story being that the witness is neither hostile to his side nor the other, but that the witness is 30
one who ought not to be believed unless supported by other satisfactory evidence.
When the public prosecutor has not sought permission of the court by resorting to S. 154 even though the witnesses have resiled from their earlier testimony, the subsequent testimony of the 31
witnesses remains uncontroverted. So, declaration of a witness as hostile is to be done immediately at the time of examination of witness and cannot be permitted long after the witness 32
has been examined. An application for recalling a witness whose examination is over and to 33
treat him as a hostile witness and cross-examine him will be rejected.
Permission to cross-examine own witness should be given only in special cases and not as a matter of course, and discretion should not be exercised in a casual manner without weighing the 34
circumstances.
It is to be noted that a court would not give leave to the party calling a witness to question him until it is satisfied that there is some hostility or adverseness displayed by the witness to the very party on whose behalf he has come to give evidence. If his memory plays a trick in regard to a 35
detail, and he does no t show any disinclination to tell the truth, then he is not hostile or adverse.
Due to the substantial difference between the present case and the case of Bhagwan Dass, its ruling of accepting hostile witness statement can be accepted as there is no extrajudicial 36
confession of any type in the present case.
It is thus submitted that in the present case, as well, there is no reason for the witness to turn hostile or adverse to the proceedings in the District Court, since in no way is PW-2 interested in the acquittal or conviction of the Defendants, nor was any extra-judicial confession made to him. PW-2 is merely an obscure and wholly unrelated person who has been dragged into the present trial, and fluctuations in his statement may not be used by the Prosecution as an excuse to crossexamine him further and induce him to confirm his earlier statement to the Police. Thus, it is
30
Kaluchand v. R, (1883) 13 Cal 53. K Ambazhagan v. Superintendent of Police, AIR 2004 SC 254. 32 Jatinder Singh Bhatia v. State, 153 (2008) DLT 633. 33 BN Chobe v. Sami Ahmad, (1961) 1 Andh LT 32-34; Dayabhai v. State of Gujarat, AIR 1964 SC 1563. 34 Phanindra Dey v. Bholanath, AIR 1982 Cal 397; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170. 35 Re Kalu Singh, AIR 1964 MP 30. 36 Pappu v. The State of Maharashtra, 2015 (3) BomCR(Cri) 344. 31
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE submitted that the Court accept PW-2’s PW-2’s deposition that he did not recognise the Defendant Sahu as admissible evidence, which is in turn an indication of the lack of any concrete proof against the Defendants. D. STATEMENTS MADE TO THE POLICE DO NOT CONSTITUTE VALID ADMISSIONS FOR THIS COURT One of the basic tenets of criminal law is that a confession made to a police officer may not be used against the person so making it. This implies, under Section 162 of the CrPC, that statements made by an accused to the police in the course of investigation are inadmissible,
37
while also under Section 25 of the Indian Evidence Act, that such confession may not be proved 38
as against the person so accused of a crime . “These legislative provisions indicate that the legislature had in view the malpractice of police officers in extorting confessions from accused persons in order to gain credit by securing convictions, and that those malpractices have gone to the length of positive torture. It is impossible not to feel that the average Indian policeman, with the desire to satisfy his superiors before, and the terms of the Police Acts and Rules behind him, is not likely to be over-nice in the methods he adopts to make short-cuts to the elucidation is a difficult case by getting a suspected 39
person to confession.”
Thus, if a confession be made to a police officer, the law says that such a confession shall be absolutely excluded from evidence, because the person to whom it was made is not to be relied on for proving such a confession, and he is moreover suspected of employing coercion to obtain 40
the confession.
The words ‘any person’ in S. 162 of the CrPC, in their ordinary meaning, will
include any person, though he may, after making the statement under the section, become an accused. 41
Section 26 is an extension of Section 25, and states that incriminating statements made while in 42
the custody of the police are inadmissible, unless made in the presence of a magistrate. The term ‘custody’ therein has a wide connotation. It implies that the police must have control over 37
Mahabir Mandal v. State of Bihar, AIR 1972 SC 1331. Mahboob v. State of Uttar Pradesh, 1982 CrLR 242. 39 R v. Babu Lal, (1884) ILR 6 All 509. 40 WOODROFFE AND AMIR ALI, LAW OF EVIDENCE 1405 (Lexis Nexis Butterworth eds. ,19th ed. 2013). 41 Prabhoo v. State of Uttar Pradesh, AIR 1962 SC 1118. 42 Mohan v. State of Rajasthan,1985 CrLR (Raj) 657. 38
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE 43
the person’s movement , and thus, if the movements of the accused were restricted or the 44
accused was kept under direct or indirect police surveillance, Section 26 comes into play.
The policy underlying behind Section 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in custody of the police, shall be presumed to have been obtained under the circumstances mentioned in S. 24, and therefore 45
inadmissible, except in cases when S. 27 applies.
Further, though a statement with a police officer may sometimes be allowed to be used in crossexamination, however, if it is a joint trial along with some other accused, the language of the section may not be stretched so as to bring the confession of the co-accused within the fold of 46
admissibility, especially if serious penal consequences will follow.
As for Section 27, there must be a recovery in pursuance to the information furnished by the 47
accused and that information must not have already been known to the police. A statement by the accused that he had committed the offence with respect to objects already discovered by the police does not fall within S.27, because be cause such a statement is not at all required to lead up to the 48
production of the property.
Thus, it is submitted that in this case, since the statement made to the police did not lead to the y had already been aware of the location of the body, this “discovery” of the body, since the they means that even Section 27 will not apply to the statement, and it may not, under any circumstance, be admitted by the Court. Additionally, since these statements are not admissible as confessions, Section 30 shall not apply in this scenario even against the co-accused Rekha and Suhas, especially since this is not 49
“evidence” as per S.3.
43
WOODROFFE AND AMIR ALI, supra ALI, supra note 40, at 1450. Ram Singh v. Sonia, AIR 2007 SC 1218. 45 Commissioner of Police, Delhi v. Narender Singh, AIR 2006 SC 1800. 46 State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820. 47 Mehboob Ali v. State of Rajasthan, Crl.A. No. 808 of 2010. 48 Duasan Bhoi v. State of Orissa, W.P.(C) No. 423 of 2013. 49 SUDIPTO SARKAR, LAW OF EVIDENCE 688 (Wadhwa Nagpur Publications eds., 16th ed. 2008); Kashmira v. S, 1952 SCR 526. 44
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE It is thus finally humbly submitted to the court, that in light of Section 24-27 and Section 30 of the Indian Evidence Act, the statement made by Sahu to the police officer be held as inadmissible by the court, both as against him, as well as against Rekha and Suhas. E. CIRCUMSTANTIAL EVIDENCE DOES NOT CONCRETELY PROVE GUILT OF THE DEFENDANTS In the case of circumstantial evidence, where there is no motive, the evidence needs to scrutinized in great detail in order to remove any doubt. For circumstantial evidence to be the basis of a conviction, the panchsheel panch sheel formula was developed wherein, the following points need to be fulfilled: 1. It is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions; 2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. The circumstances should be of a conclusive nature and tendency; 4. They should exclude every possible hypothesis except the one to be proved; and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human 50
probability probability the act must have been done by the accused.”
It has also been held that if two views of the available evidence are possible, then the view which is favorable to the accused must be followed, and this rule should be especially followed in cases 51
of circumstantial evidence. Furthermore, it has been held that there must be some credible evidence which must link the accused to the crime; mere suspicion indicating inconsistency of innocence of the accused cannot make an accused liable. Seriousness of the gravity of the crime should not motivate a court to punish an accused.
52
The court has stated time and again that circumstantial evidence is not used in conviction as the difference between “may be” and “must be” is too large.
50
Shivaji Sahebrao Bobade v. State of Maharashtra 1973 Cri LJ 1783. Kali Ram v. State of Himachal Pradesh AIR 1973 SC 2773. 52 Mohd. Faizan Ahmed v. State of Bihar (2013) 2 SCC 131. 51
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE In the present case, the lack of discovery of any instrument of murder, no witness and no strong motive except a hypothesized motive indicate towards an ambiguous evidence. In a case of circumstantial evidence, if the res gestate suggests that the relationship of the accused with the deceased was strenuous, it cannot be a basis to convict the accused in lack of an express evidence or proof implicating the accused and proving the prosecutions story. This has been held by the court by way of an example that:
53
“Assume that in a murder a murder case there are five circumstances: A - motive/strain in the relationship. B - That the accused and the deceased had quarreled a little prior to the incident. C - That the accused was seen running away from the room where the deceased was lying with injuries. D - Dying declaration made by the deceased implicating the accused. E - Extra judicial confession by the accused.” accused.” The High Court held that only the presence of circumstances A and B do not implicate the accused in cases of circumstantial evidence. Conclusions consistent with innocence of the accused may be possible even if circumstances A & B are proved convincingly. Here, in the present case, it is only an assumption that Trisha and Rekha shared a strenuous relationship, hypothesized based on the presented facts, thus, no conclusive evidence. The Supreme Court held that proving of motive is a must in cases of circumstantial evidence, as it is even necessary in cases where the evidence is not all circumstantial. This should be coupled with a witness testimony. But even is a motive is proved, the lack of any other evidence or 54
witness does not take the prosecution’s case home.
There are no testimony’s in the present
case, and no evidence which establishes the story of the prosecution. A mere motive will not make Rekha, Suhas, and Sahu liable.
53
M.G.Agarwal v. State of Maharashtra, AIR 1963 S.C 200. Sheo Shankar Singh v. State of Jharkhand and Anr., (2011) 3 SCC 654.
54
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE II.
THE CHARGES
FRAMED CANNOT BE PLACED AGAINST THE
DEFENDANTS
SO AS TO
CONVICT.
It is submitted that the defendants are innocent of the charge of Murder of the deceased Trisha Das under Section 302 of the IPC [A], and they plead innocent of the charge of Kidnapping with the intent of murder, under Section 364 [B]. They submit that they also did not cause the disappearance of any material evidence to the case, as charged under Section 201 [C]. Furthermore, they submit that they did not take part in a criminal conspiracy to commit crimes, under Section120-B [D], and that they lacked any common intention to commit crime under Section 34 [E]. Lastly, it is submitted that Rekha must be acquitted of the charge of causing the miscarriage of the deceased, as under Section 313 of the IPC [F]. A. THERE MAY BE NO CONVICTION FOR MURDER UNDER SECTION 302 Murder is act of culpable homicide done intentionally, murder being the specie of the genus of 55
culpable homicide. The necessities of culpable homicide amounting to murder being: i)
Act should be done to cause death or likeliness that it would cause death
ii)
Should not be arising out of provocation , in private defence , done in advancement
56
57
58
59
of public duty by public servant , out of premeditation , or by way of foreseeable 60
risk.
Motive is an important element to carry out the intention to carry out death of another, 61
especially, in cases of circumstantial evidence. Presence of motive in cases of circumstantial 62
evidence itself forms a link in the chain of the crime. The Supreme Court has further accepted the main contention of the Defendants that although motive cant alone convict a person, it can help in connecting all further circumstances.
63
Thus, in the present case, there has been a considerable lack of a credible motive due to which the Defendants have committed the murder of the victim. As seen above from the Court decisions, the motive is an essential piece in any trial and without that, a conviction is very hard. 55
State of A.P. v. R. Punnayya, 1977 Cr LJ 1. Exception 1, Section 300, Indian Penal Code, 1860. 57 Exception 2, Section 300, Indian Penal Code, 1860. 58 Exception 3, Section 300, Indian Penal Code, 1860. 59 Exception 4, Section 300, Indian Penal Code, 1860. 60 Exception 5, Section 300, Indian Penal Code, 1860. 61 State of U.P. v. Babu Ram, (2000) 4 SCC 515. 62 Sheo Shankar Singh v. State of Jharkhand and Anr., (2011) 3 SCC 654. 63 Santosh Kumar Singh v. State through CBI, (2010) 9 SCC 747. 56
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE Thus, due to the lack of motive and the principles laid down by the court, it can be held that the Defendants cannot be held accountable for the offence of murder. IDNAPPING UNDER SECTION 364 DOES NOT HOLD B. THE CHARGE OF K IDNAPPING 64 The necessary ingredients under this section as iterated by the Apex Court are :
i)
Abduction must be proved
ii)
Person charged must have had the intention at the time of abduction to murder the abducted or be put in such danger
A conduct which destroys the presumption of innocence is a material fact. In a case where the accused misled the kidnap rescue search and not allowing to search specific places created a cast iron doubt over his innocence, establishing liability.
65
Firstly, there is no proof of Trisha’s kidnapping whatsoever. This section is attracted when the when the kidnapping is sufficiently proved but it’s intent, that of murder, has to be ascertained. The first elements itself is not proved. In cases which have attracted Section 364 and the evidence is primarily circumstantial, the Supreme Court has strictly strictly adopted the approaches: 66
i)
The circumstantial evidence must be proved beyond doubt ,
ii)
The kidnapping/abduction must be conclusively ascertainable or proved. In order to ascertain this, the courts have used the last seen theory, whereby, the victim must be 67
last seen with the accused. When there is an element of murder, there is additional requirement that it be proved that a. there was a kidnapping and b. that kidnapping was for the purpose of murder. iii)
68
The court also held that the use of force against the deceased was an important factor 69
in the conviction under Section 364.
Thus, Trisha’s kidnapping cannot be conclusively proved or ascertained beyond the shadow of 70
doubt. If the ‘Panchsheel” formula for circumstantial evidence for conviction under Section 364 is applied in the present case it can be found that Trisha’s kidnapping itself cannot be
64
Badshah v. State of UP, (2008) 3 SCC 681. Jhapasa Kabadi v. State of Bihar, AIR 2002 SC 312. 66 Prakash v. State of Rajasthan, (2013) 4 SCC 668. 67 Ibid. 68 Badshah and Ors v. State of Uttar Pradesh, (2008) 3 SCC 681. 69 Vishal Yadav v. State of UP, CRL.A. 741/2008. 70 Sivajirai Bobade v. State of Maharashtra, AIR 1973 SC 2622. 65
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE proved, let alone the involvement of the 3 accused in it. Further, no use of force or deceitful means can be proved to be have been used, and there has been no discovery of the instrument used for murder or the car. Rekha was diligent to report to the police upon return, informing them the reasons for Trisha’s absence. The police could have built upon their search upon this information. Later, she was also put under surveillance, which from the facts can be understood to be for 40 months, but nothing out of the ordinary casting doubt can be said to be assumed. C. THERE
HAS BEEN NO CAUSING OF DISAPPEARANCE OF EVIDENCE OR GIVING FALSE
INFORMATION TO SCREEN OFFENDER BY THE DEFENDANTS
The main ingredients which invoke Section 201 are: i)
Commission of an offence
ii)
Cause any evidence to disappear
iii)
Intention of screening the offender from legal punishment.
As a matter of practice a Court will not convict a person both of the main offence and under this 71
section. Although the Supreme has allowed for conviction under this section on circumstantial 72
evidence, it held that this evidence needs to establish guilt beyond a reasonable doubt. This has been accepted on multiple occasions wherein the court has not accepted a conviction if the 73
circumstantial evidence does not provide guilt beyond reasonable doubt. The court further held that the prosecution could not present any positive evidence to prove the destruction or removal of the evidence in the first place. A combined reading of S. 101 and S. 104 of the Evidence Act also puts the burden on the prosecution to present a positive evidence to prove the damage or loss of it and convict the accused on its basis. The accused cannot be convicted on the 74
disappearance or loss of something whose existence itself is disputable.
The present factual matrix does not provide a situation wherein the circumstantial evidence relied on by the prosecution does not give an element of proving beyond a reasonable doubt that is required for the prosecution under this section. The facts do leave certain questions due to which the question of prosecution cannot be answered in the positive. 71
Kalawati v. State of Himachal Pradesh, (1953) SCR 546; V.L. Tresa v. State of Kerala, AIR 2001 SC 953. Sukhram v. State of Maharashtra, (2007) 7 SCC 502. 73 Hanuman v. State of Rajasthan, 1994 Supp (2) SCC 39. 74 Tejinder Singh v. State of Punjab, (2013) 12 SCC 503. 72
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE Thus, with the facts of the case with the legal principles laid down, the Defendants cannot be prosecuted under Section 201. D. THERE EXISTS NO CRIMINAL CONSPIRACY AMONGST THE DEFENDANTS The essential ingredients of a criminal conspiracy are: i)
There must be an agreement between the persons who are alleged to conspire
ii)
The agreement must be for a) doing an illegal act, b) doing a legal act illegally.
The present case presents no substantive evidence for a criminal conspiracy between the parties. Although it has been accepted that for Conspiracy occurs in secrecy and direct evidence is not 75
always available , there is a requirement that there the re need to some substantive corroboration co rroboration to the 76
hypothesis even if only circumstantial evidence is available. There is a minimum requirement that a minimum level of corroboration is required if the charge of criminal conspiracy is to be 77
proved.
In the present case, it can be proved as to why the three alleged persons would come together to result the murder of the deceased. Suhas Kumar’s motive and intention cannot be established on the give facts, thus, no Suhas cannot share a common intention with Rekha. It cannot be established as to why would accused Suhas Kumar would fly to Delhi to especially kill Trisha againt whom on the basis of current facts he shared no animosity or had no relationship with. Similarly, Similarly, Sahu’s involvement in furthering Rekha’s motive or sharing a common motive cannot be adduced by the surrounding circumstances. No substantive evidence has been placed which established that the accused persons acted in concert with a common intention, therefore, an agreement to result Trisha’s abduction and murder cannot be established. THE DEFENDANTS E. THERE WAS NO COMMON I NTENTION AMONGST THE
Section 34 is used not substantively but to bring under the ambit of all persons accomplice to a common crime, where it is difficult to distinguish between the acts of the individual members of the common intention of all. All such people are deemed guilty as the presence of an accomplice
75
Mohd. Khaild v. State of West Bengal, (2002) 7 SCC 334. Mohan Singh v. State of Bihar, (2011) 9 SCC 272. 77 S. Arul Raja v. State of T.N., (2010) 8 SCC 233. 76
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE 78
79
gives encouragement, support and the final shape to the criminal act. The main ingredients for Section 34 are: i)
common intention;
ii)
participation by all accused in the act or acts in furtherance of the common intention,. 80
Furtherance means “action of helping forward”, which was adopted by the Supreme Court.
The parties must be shown to be having a common intention to come together to commit a crime, the act being a positive act in concert. The Supreme Court has held that it is the essence of the section that a person must be physically present to commit the act. In fine, if common intention cannot be inferred from the evidence of facts and circumstances of the case, then section 34 I.P.C. is cannot be invoked. In this case, the facts suggest that Suhas Kumar came all the way to Delhi to abduct and kill Trisha and that the driver Shyam Sahu complied with the criminal acts of his employer Rekha. On the basis of surrounding facts, no common intention can be adduced, and as already proved above no substantive evidence proves the existence of an agreement to further the crime. EKHA CANNOT BE CONVICTED FOR CAUSING MISCARRIAGE F. THE DEFENDANTS R EKHA
Courts have declared that on the strength of vague evidence and in the absence of corroborative medical evidence, conviction for a serious offence under Section 313 IPC cannot be done. In 81
such cases, benefit of doubt must be given to the accused. The Prosecution must bring in 82
adequate medical evidence and testimonial evidence as to the consent for abortion.
Furthermore, when there has been no case against the Doctor who conducted the abortion, it may 83
be assumed that there was no lack of consent.
It is submitted that owing to lack of concrete evidence, it may not be assumed that Rekha forced Trisha to abort the child. Mere disagreement to a child’s birth owing to the social realities and taboos of India cannot cannot be said to be pressurizing. Trisha’s abortion was with her own consent, done freely, as Trisha and Shobhit were merely cohabiting and had not married.
78
Ibid. Ramjee Rai v. State of Bihar, (2006) 13 SCC 229. 80 Parasa Raja Rao v. State of Andhra Pradesh, (2003) 12 SC 306. 81 Sonti Rambabu v. State of Andhra Pradesh, AIR 2004 AP 317. 82 Shobha Devi v. The State of Jharkhand and Nutan Kumari, 2011 CriLJ 4745. 83 Moideenkutty Haji and Ors. v. Kunhikoya and Ors., AIR 1987 Ker 184. 79
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WRITTEN SUBMISSIONS FOR THE FOR THE DEFENSE
PRAYER FOR RELIEF
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments adv anced, it is most humbly prayed before this Hon'ble Court that it may be pleased to adjudge and declare the following: 1. The Defendants are innocent of the charge of murder of Trisha Das under Section 302 of the Indian Penal Code; 2. The Defendants are innocent of the charge of kidnapping of Trisha Das under Section 364; 3. The Defendants are innocent of the charge of causing disappearance of evidence under Section 201; 4. The Defendants are innocent of common conspiracy to commit a crime under Section 120-B and had common intention thereof under Section 34; and 5. The Defendant Rekha is innocent of the charge of causing miscarriage without consent under Section 313.
OR
May pass any other order that it deems fit in the light of Justice, Equity and Good Conscience.
Sd//_______________ (Counsel for the Defendant)
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